We Can Association Incorporated

[2016] FWC 4765

[2016] FWC 4765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

We Can Association Incorporated
(C2016/2863 to C2016/2874)

COMMISSIONER WILLIAMS PERTH, 18 JULY 2016

Variation of redundancy pay.

[1] This decision concerns 12 applications (C2016/2863 to C2016/2874) made under section 120 of the Fair Work Act 2009 (the Act) by We Can Association Inc (We Can or the applicant).

[2] We Can had provided a range of services to people with disabilities or who are otherwise disadvantaged.

[3] Earlier this year they ceased providing services to people with disabilities and as a consequence a number of staff were made redundant.

[4] These applications are made by We Can on the basis that they believe they have obtained other acceptable employment for these employees and consequently wish the Commission to reduce the amount of redundancy pay that would otherwise be payable to these employees.

Background

[5] In January 2016 We Can advised its employees that the decision had been made to no longer provide services to people with disabilities. It was explained that We Can would be working collaboratively with the Disability Services Commission to transition all We Can’s existing clients to a new service provider.

[6] Subsequently many of We Can’s clients were taken over by another disability services provider known as Rise Community Support (Rise).

[7] A number of We Can’s employees were then employed by Rise.

[8] The parties were provided an opportunity to provide evidence and submissions.

[9] We Can have provided some information and evidence in support of their applications and a number of the affected employees who are respondent to the applications have also provided information and evidence.

Factual findings

[10] In mid-January 2016 the Chief Executive officer of We Can Ms Judith Monteath (Ms Monteath) wrote to employees explaining that We Can would no longer be providing services to people with disabilities and that the Disability Service Commission would be involved in transitioning all existing clients to a new service provider.

[11] The letter included the following paragraphs:

“In making this decision all staff will no longer be employed by We Can, however all staff will have the opportunity to apply for a position with the new service provider that is chosen to support clients once this has been determined by families.

I am sure that all staff will maintain a high quality of service to the Organisations clients until the transition has been finalised. We anticipate that the transition will be finalised by the end of February 2016.

Please find attached information that may be helpful to you during the transition process.”

[12] The attached information included a document headed “Information for We Can staff- January 2016”.

[13] In that document a series of questions were posed with dot point answers provided below. The fifth question posed was as follows:

“I’m concerned about the long-term situation of the people I support. How will any future support workers understand their needs?

• Current We Can staff may be able to continue to provide support but this will be a process of selection and recruitment between the individual staff member and the agency that is selected by the family to deliver services for their loved one in the future.”

[14] I accept the evidence from Ms Monteath that she had a number of discussions with the Disability Services Commission regarding We Can’s employees transitioning to the new agency that would be taking over the care of We Can’s clients.

[15] When she learnt that Rise would be taking over their clients she had a number of discussions with Mr Justin O’Meara (Mr O’Meara) who is Rise’s Divisional Manager – People with Disability lobbying for Rise to offer continuing employment to We Can’s employees.

[16] An example of this is an email Ms Monteath sent to Mr O’Meara on 21 January 2016 which read as follows:

“I have had a conversation with your HR manager this morning. I will forward him rates of pay. Could you advise when you would be making a decision to employ our current staff. The DSC has advised Parents in our meeting that Rise is keen to employ staff from We Can to maintain continuity for the clients at the homes, as this was one of their main concerns.
Obviously our staff who have been notified of We Can closing are anxious to know if they will be selected and employed by Rise.
If I am unable to let staff know when recruitment and selection will take place, the staff may seek alternative employment with another service provider.
The majority of the community support clients and families are also keen to be supported by their current staff member, some of whom have been with them for many years
And have nominated Rise. Will you be providing the support option?
To date I don’t know of any families who have selected Interchange.” (sic)

[17] I accept the further evidence of Ms Monteath that after a number of meetings with Mr O’Meara she had worked with him to facilitate the transition of staff into Rise. One element of this was an arrangement between both organisations for We Can staff to accompany Rise staff on Buddy shifts to assist in transitioning clients to Rise.

[18] By 1 March 2016 Rise had ended into employment contracts with nine of the employees subject to this application.

[19] With respect to the application concerning Mr Chisopa (C2016/2863), Mr Kay (C2016/2864), Mr Krishnan (C2016/2865), Mr Maki (C2016/2866), Mr Wood (C2016/2867), Ms Brook (C2016/2868), Mr Mtshena (C2016/2869), Ms Misama (C2016/2870), Ms Le Roux (C2016/2871) and Ms Jeffrey (C2016/2872) the evidence of the applicant and its submissions is identical as to obtaining other employment for them at Rise.

[20] With respect to the application concerning Ms Taylor (C2016/2873) the evidence and submission of We Can is that Ms Taylor indicated her preference to remain with another support agency BGSR whom she had previously transitioned to with one of We Can’s clients. Discussions were entered into with the other client’s parents for that client also to move to BGSR which was agreed to by the client’s parents. I accept that We Can was involved in arranging or facilitating that transition although obviously this was a decision for the clients and/or their guardians or parents.

[21] With respect to the application concerning Mr Grewal (C2016/2874), We Can has subsequently advised that they have chosen to pay him his redundancy pay in full and so the application is now moot. Accordingly I will dismiss this application.

[22] I now turn to consider the evidence provided by a number of the respondent employees.

Mr Kay (C2016/2864)

[23] Mr Kay submits that the employees were invited to apply for a position with Rise. They were required to attend an interview, if invited, and were required to pass health screening. Mr Kay says that many employees from We Can were not employed by Rise. He submits that he got himself the job by applying for it. He says it was made clear to him in a telephone conversation with Liz Offer that it was not a guaranteed position and that he would have to apply with everybody else.

[24] Mr Kay provides a copy of his letter of termination from We Can dated 4 March 2016 which includes the following paragraph:

“All staff are encouraged to apply with an alternative Organisation during this time. Rise and Interchange that are taking over services to our existing clients are keen for you to apply with them.”

[25] Mr Kay included an email from the Manager−Supported Accommodation at Rise dated 16 March 2016 which is a response to an enquiry he made regarding the employment process in the context of these applications. The email response from Rise reads as follows:

“Our process was that all We Can staff were invited to Rise induction day, they were then given the opportunity to complete an application form, go through the interview process and if successful would be offered employment.” (Underlining added)

Mr Maki (C2016/2866)

[26] Mr Maki submits that there were no guarantees of ongoing employment with Rise however his application was successful but others were not.

Mr Wood (C2016/2867)

[27] Submissions on behalf of Mr Wood argue that We Can did not obtain the other employment with Rise, but rather this came about through the efforts of Mr Wood himself who had obtained the support of the parents of one of the clients he had been working with at We Can and the support of the other client he was working with. The second client Mr Todd, has confirmed in writing to the Commission that he had called Rise and told them he wanted to have Mr Wood to continue to provide support for him at Rise.

Ms Brook (C2016/2868)

[28] Ms Brook’s statement is that she gained her employment with Rise due to the parents of the client she had been supporting contacting Rise and requesting she be their daughter’s carer.

[29] Ms Brook also submits that the 10 hours per week she has been offered to work at Rise is insufficient hours, is not sustainable employment for her and so is not acceptable other employment.

Ms Misama (C2016/2870)

[30] Her evidence was that We Can notified her of a potential employment opportunity by leaving a leaflet in the staff room advising of an information session with Rise.

[31] Her evidence was this was the end of We Can’s involvement. She had attained the job on merit having put in an application with a resume, attending an interview being subject to questions from a multi-person panel, having a medical and a physio assessment and having provided a police clearance. Her evidence was that not all We Can staff were able to secure jobs at Rise.

Ms Le Roux (C2016/2871)

[32] Ms Le Roux’s evidence was that in February 2016 she contacted Rise of her own discretion to enquire about employment. She attended an interview and was successful in securing a position. She was required to attend a GP medical assessment and a physiotherapy assessment and her offer of employment was conditional on passing these physicals. She was also required to obtain a new national police clearance despite having a previous clearance that was no less than 12 months old.

[33] Her evidence is she was never involved in any Buddy program.

[34] Her submission is that her employment with Rise was not secured by We Can at all.

Ms Jeffrey (C2016/2872)

[35] Her evidence was that she attended a recruitment session at Rise where a Rise manager talked about making it easier for the clients and giving staff some peace of mind and also told the staff who attended that they would have to follow the same recruitment procedures as any other person applying for a job and weren’t guaranteed employment.

[36] She applied for a role that was being advertised on the Rise website, sent through a resume and attended an interview. She then proceeded to the second round where she had a medical and all her clearances were checked and she was then hired by Rise.

Ms Taylor (C2016/2873)

[37] Ms Taylor’s evidence is that We Can had no input into her obtaining a position as a Support Worker at BGSR. She says she was asked by her client Ms Singleton that if she (the client) chose to go to another agency would Ms Taylor like to apply to that agency so Ms Taylor could continue to support her? Ms Taylor says she then received a text message on 29 January 2016 informing her who to apply to for the position. The following day she applied to BGSR for the position.

[38] She attended an interview on Thursday, 3 February 2016 and was offered the position.

[39] At the same time she took up the new position with BGSR on 15 February 2016 she was continuing to work at We Can with her other client Mr Abbonizio.

The legislation

[40] The relevant sections of the Act are set out below:

119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[41] In terms of the legislative scheme relevant in the circumstances here an employer can only successfully seek a variation of redundancy pay that would otherwise be payable to an employee where the employer “obtains other acceptable employment” for that employee.

[42] There are then two separate elements that must be satisfied before the Commission can exercise its discretion to vary the redundancy pay. Firstly, the Commission must be satisfied that it was the employer that obtained the other employment and secondly, that this employment obtained is acceptable employment.

[43] We Can as the applicant in each of these applications bears the onus of providing evidence to satisfy the Commission that for each respondent employee they have obtained other employment and that employment is acceptable employment.

The meaning of “obtains”

[44] In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia 1the Full Federal Court reviewed a decision of the Full Bench of the Commission which had rejected an employer’s application to reduce the amounts of redundancy pay because it concluded the employer had not obtained other acceptable employment for the relevant employees. The Federal Court explained the back ground as follows:

“6 In its reasons of 21 October 2014, the Full Bench itself set out, in detail, the steps that had been taken by the applicant in this regard. It referred to the evidence of the applicant in the following terms:

Mr Christmas’ witness statement discloses that the action taken by [the applicant] to obtain employment with ACG for its soon to be redundant employees was to provide a list of employees and their contact details to ACG in respect of those employees who gave permission to do so, with the two main communications in evidence of employee details occurring on 9 October 2013 in respect of 32 of the employees subject to the orders made and 21 October 2013 in respect of an additional 15 employees subject to the orders made. Two employees subject to the orders – Mr S Clancy and Mr N Giffen – were not identified in either of the emails.

According to the Full Bench, a further action undertaken by the applicant was to request ACG to make arrangements to meet those of its employees who were about to be retrenched through the applicant, so that the applicant might manage its obligations under its enterprise agreement. The Full Bench noted that this request was not acceded to by ACG, which made its own arrangements to contact those employees. The Full Bench said:

Whilst [the applicant] sought to play a role in arranging contact between ACG and its employees, it in fact played no role other than the provision of contact details to ACG.

The Full Bench added that the only other actions taken by the applicant were its unsuccessful attempts to engage ACG in discussions directed to a commercial agreement between the two companies in relation to the employees’ accrued leave and accrued service with the applicant, and the provision of a copy of the enterprise agreement, which ACG already had from another source.

7 In the course of dealing with this evidence, the Full Bench noted that there were four of the applicant’s employees who had been interviewed by ACG, but were not offered positions.

8 On these facts, the question for the Full Bench was whether the Commissioner at first instance had been in error to conclude that the applicant had obtained acceptable alternative employment for the 49 employees within the meaning of s 120(1)(b)(i) of the FW Act. It held that he had been. In reaching an understanding of the meaning of “obtains”, the Full Bench referred to earlier decided cases, both in this court and in the Commission’s predecessor tribunals, under analogous provisions. Those provisions were not, however, statutory ones, and the decision-making context in which the cases arose was somewhat different from that which now exists under s 120 of the FW Act. Before referring to the cases, it is convenient to consider some of that context.”

[45] Having reviewed the history of the case law concerning the meaning of the word “obtain” as it is was found in Awards and previous iterations of the legislation the Full Federal Court decided that the Full Bench was not in error and at paragraph 18 said:

“…to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice. If the employment is not accepted, the question whether that employment was “acceptable” will then arise.

19 With respect to the Full Bench in Clothing Trades, we consider it to be a distraction to introduce the issue of whether the previous employer was “a strong moving force towards the creation of the available opportunity”. To proceed in that way would be to introduce unnecessary complications into the connotation of an ordinary word in the English language. If someone comes into possession of something, either literally in the case of a chattel or figuratively in the case of a new legal relationship or other incorporeal benefit, we cannot understand how the question whether he or she “obtained” that thing would be answered differently depending on whether he or she, or someone else on his or her behalf, had been a “strong moving force” in the events which led to that possession.

20 With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:

To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.

We would not regard the references to “effort”, and to “purpose and effort” in this meaning as implying the existence of some kind, much less a strong kind, of “moving force” in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the “general” connotation of the word – “to acquire, get” – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.

It did become the subject of legislation with the enactment of the FW Act in 2009. In the way that s 120 is drafted, the matters set out in subs (1) are, as the Full Bench in the present case recognised, jurisdictional facts for the exercise of the discretion arising under subs (2). As such, whether the applicant obtained acceptable alternative employment is now directly justiciable in this court in an application of the present kind. It is alleged that the Full Bench wrongly declined jurisdiction under s 120. If that allegation were a good one, mandamus would be the appropriate remedy. In our view, however, the allegation should not be accepted.

22 The 49 employees did obtain employment with ACG. It seems to be uncontentious that this employment was acceptable. But, on the facts referred to earlier in these reasons, we would not find that the applicant obtained that employment for those employees. It may have facilitated the opportunity for them to apply for employment with ACG, but what it obtained for them was something less than offers of employment which they could accept or decline as a matter of choice.”

[46] The Commission is bound to follow the Federal Court’s approach. The question to be determined in this case is whether We Can procured another employer to make an offer of employment, which the employees may or may not have accepted as a matter of choice. It is clear from the Federal Court’s decision that just facilitating the opportunity for employees to apply for the other employment is something less than obtaining offers of other employment and so does not amount to obtaining other employment for the employees.

Consideration

[47] Considering the evidence provided by We Can it is clear from the email dated 21 January 2016 that no decision had been made by Rise to employ We Can staff at that point. It is also apparent that at that time Ms Monteath’s expectation was that any recruitment of We Cans staff that Rise might undertake would involve a selection process and decision to employ by Rise. This is consistent with the advice Ms Monteath provided to We Cans employees shortly prior to this that there would be a selection process by whomever was the agency taking over We Can’s clients.

[48] The evidence provided by We Can demonstrates that We Can did actively promote the possibility that Rise would employ their employees and took some steps to assist in Rise doing so however the evidence of We Can does not go so far as to demonstrate that We Can had procured Rise to make an offer of employment, which the individual employees of We Can could have accepted or rejected as a matter of choice.

[49] The evidence of the employees reinforces my conclusion above. It is common across the employees who gave evidence that they were required to make an application to Rise, which they did themselves. They were then required to attend interviews and had to pass medical examinations and police checks. Only after this were they offered employment with Rise.

[50] Separately a number of the employees had been advised that there was no guarantee of employment with Rise. Consistent with this a number of the employees have stated that a number of We Can employees were not successful in obtaining employment at Rise.

[51] Consequently whilst We Can did promote the idea of Rise employing their previous staff by generally making employees aware of who the new agency was, by providing information about information sessions Rise then conducted and providing some information to Rise such as pay rates, it is quite clear that We Can did not obtain any agreement from Rise that they would make offers of employment to the individual employees subject to these applications. Rather the evidence is that the individual respondent employees, other than Mr Grewal, each applied for employment with Rise and were offered employment only having successfully navigated a normal recruitment process conducted by Rise.

[52] Considering the meaning of the word “obtain” in section 120 of the Act, as recently determined by the Full Federal Court of Australia, I am not satisfied that We Can did obtain other employment for any of the respondent employees. Given this conclusion I do not need to consider whether the other employment for each of the employees was acceptable employment.

[53] Each of these applications will now be dismissed.

[54] Other than Mr Grewal who has already received his redundancy payment in full, each of the other employees who are respondent to these applications is entitled to be paid the redundancy pay in accordance with section 119 of the Act.

COMMISSIONER

Final written submissions:

Applicant, 29 March 2016.

P. Kay, 17 and 30 March 2016.

T. Maki, 23 March 2016.

W. Wood, 13 and 15 April 2016.

R. Brook, 15 April 2016.

L. Misama, 14 April 2016.

R. Le Roux, 15 April 2016.

A. Jeffrey, 1 April 2016.

N.Taylor, 12 April 2016.

 1 [2015] FCAFC 90.

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